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What a pet friendly by-law
needs to cover
There are many choices to be made: Will it be ‘open door’
or ‘case-by-case’? Will it be ‘one pet or two’? Will it
limit the breeds and weights? And what restrictions will
apply to prevent a nuisance, hazard or loss of enjoyment for
other owners and occupiers?
Model By-Law – Keeping of
Animals
The starting point is model by-law 5, found in the
Strata Scheme Management Regulation 2016 (NSW), which is
as follows:
5 Keeping of animals
Option A
- An owner or occupier of a lot may keep an animal on
the lot, if the owner or occupier gives the owners
corporation written notice that it is being kept on the
lot.
- The notice must be given not later than 14 days
after the animal commences to be kept on the lot.
- If an owner or occupier of a lot keeps an animal on
the lot, the owner or occupier must:
(a) keep the animal within the lot, and
(b) supervise the animal when it is on the common
property, and
(c) take any action that is necessary to clean all areas
of the lot or the common property that are soiled by the
animal.
Option B
- An owner or occupier of a lot may keep an animal on
the lot or the common property with the written approval
of the owners corporation.
- The owners corporation must not unreasonably
withhold its approval of the keeping of an animal on a
lot or the common property and must give an owner or
occupier written reasons for any refusal to grant
approval.
- If an owner or occupier of a lot keeps an animal on
the lot, the owner or occupier must:
(a) keep the animal within the lot, and
(b) supervise the animal when it is on the common
property, and
(c) take any action that is necessary to clean all areas
of the lot or the common property that are soiled by the
animal.
- An owner or occupier of a lot who keeps an
assistance animal on the lot must, if required to do so
by the owners corporation, provide evidence to the
owners corporation demonstrating that the animal is an
assistance animal as referred to in section 9 of the
Disability Discrimination Act 1992 of the
Commonwealth.
Note. Select option A or B. If no option is
selected, option A will apply.
Notes:
- Options A and B automatically apply to strata
schemes registered from 1 July 1997, if the developer
did not introduce their own by-laws. They also apply to
other strata schemes which have adopted the model
by-laws as their by-laws by special resolution (75%
majority of votes) at a general meeting.
- Option A is an ‘open door’ by-law for Keeping of
Animals. It requires that the owner or occupier notify
the owners corporation within 14 days after the animal
is kept on the lot.
- Option B is a ‘case-by-case’ by-law. It requires the
owner or occupier to obtain approval from the owners
corporation to keep an animal. The approval must not
unreasonably be withheld.
- There used to be an Option C ‘closed door’ by-law in
the model by-laws in the Strata Scheme Management
Regulation 1997 (NSW) which was:
Option C
Subject to section 49 (4) of the Act, an owner or
occupier of a residential lot must not keep any animal
on the lot or the common property.
Option C was removed in 2016.
- Strata Schemes which were registered during the
period from 1 July 1997 until 30 November 2016, had to
select one of Options A, B or C. Since then, only
Options A or B can be selected.
'No Pets’ strata by-laws
are no longer valid in NSW
‘No pets’ strata by-laws were valid in NSW until 12
October 2020. That day, the NSW Court of Appeal decided in
Cooper v The Owners – Strata Plan No 58068 [2020]
NSWCA 250 that ‘no pets’ by-laws are no longer valid in NSW.
The Court of Appeal struck down a by-law in the form of
Option C, after a challenge made by an owner who wanted to
keep a miniature schnauzer dog in their apartment.
The Court ruled that it was beyond the power of the
owners corporation to prohibit the keeping of an animal in
an apartment. It said that the power to make by-laws was
limited “to deal with activities which may adversely affect
the amenity of other lots, including the use of common
property”. That is, by-laws may legitimately deal with
noise, and lay down rules to apply when the animal is on the
common property, but not impose a blanket ban on animals.
For my analysis of that decision, see
Court strikes
down ‘no pets’ strata by-law
Case study: When is it
unreasonable for a strata scheme to refuse approval for
pets?
As a result of Cooper’s Case, strata schemes which
have a ‘no pets’ policy or by-law must now adapt and learn
to live with a ‘pet friendly policy’. Option B gives more
control to the owners corporation than Option A. If the
strata scheme adopts Option B, they must give approval to
pets on a case-by-case basis and have conditions for keeping
pets.
When giving or withholding approval, the owners
corporation must act reasonably. The test for reasonableness
was examined by the Appeals Panel of the Civil and
Administrative Tribunal NSW (NCAT) in the decision of
Strata Committee of Owners Corporation SP 75226 v Ison
[2018] NSWCATAP 2 (3 January 2018).
The facts were that the Isons owned a strata unit at
Forster, on the NSW Mid North Coast. They had purchased the
unit for their eventual retirement. They rented it for
holiday rentals for about 20 weeks per year and visited and
occupied it for periods during the balance of the year. When
they visited, they took with them their two young cavoodle
dogs.
A number of the owners of the 22 strata units complained
about the dogs “yapping intermittently over a period of a
few days”, and a “full-on continuous bark-fest” lasting
about 1½ hrs from 9 – 10.30 pm one night.
Option B applied to the strata scheme. After their
application for approval to keep the dogs was rejected, the
Isons applied to NCAT for an order permitting keeping of
animal under s 157 of the Strata Schemes Management Act
2015.
The Appeal Panel of NCAT ordered that approval be given
to keep the dogs. It dismissed the objections raised by the
owners corporation because it was satisfied there was no
real risk of injury or disturbance to owners or occupiers of
the strata scheme, for these reasons:
- The first objection was that the dogs had caused
nuisance through barking. The evidence was that this
happened on only one occasion.
- The second objection was health risks arising from
pet dander (which may cause allergic reactions in some
people) and the possibility of people (and particularly
elderly or disabled people) tripping over dogs,
dog-leashes or dog excreta, and thus potentially
sustaining serious injuries. There was no evidence of
any allergic reaction and no evidence of a single fall
resulting from entanglement of leashes or slippage on
wet patches. The Tribunal noted that the Isons had
agreed that the dogs would not be on common property
except to travel from the basement car park to their
unit; and whilst on common property the dogs would be
kept on a short leash so as to mitigate these risks. The
Tribunal concluded that these risks were unlikely to
cause harm.
- The third objection was that a significant number of
owners were in favour of a ‘no-pets’ policy, and several
had purchased their units because they understood this
to be the policy. The Tribunal said that this was
irrelevant – there was a ‘pet-friendly’ by-law in place.
What guidelines should
apply to ‘pet friendly’ by-laws?
Each strata scheme has the right to pass a by-law to
restrict but not ban pets.
The lesson from Ison’s Case is that the guidelines
contained in Options A and B do not contain sufficient
detail.
There are two areas to focus upon when drafting a pet
friendly by-law:
1. What animals should be allowed?
The by-law needs to provide detail to guide decisions
by the owners corporation as to when it might
reasonably refuse its approval for the keeping of an
animal, for the purposes of Option B.
The by-law should list animals allowed, such as:
(i) goldfish or other similar fish in an indoor
aquarium;
(ii) one domestic cat or small dog;
(iii) one small caged bird;
(iv) assistance animals.
The by-law should list disqualifications for animals
not allowed, such as:
(i) A cat or dog must not exceed approximately 12
kilograms in weight when fully grown, must be desexed
and registered;
(ii) A dog must not be vicious, aggressive, noisy or
difficult to control [some strata schemes list breeds
which are banned such as Rottweilers and Staffordshire
terriers].
There should be an application form which requires
the owner or occupier to declare that the animal has
been trained, been desexed, been vaccinated, been
microchipped (provide the microchip number) and if a
dog, been registered. A photo should be provided.
2. What conditions should apply when the animal is on
common property?
Both Options A and B require an owner or occupier “to
supervise the animal when it is on common property”.
Restrictions and conditions are needed, such as the
owner must ensure that:
(i) The animal must be accompanied at all times;
(ii) The animal must be appropriately tethered or kept
caged and under control;
(iii) The animal must not cause any noise which is
disturbing to an extent which is unreasonable;
(iv) The owner is responsible for damage to or loss of
property or injury to any person caused by the animal;
(v) The owner is responsible to clean up after the
animal has used the common property.
The law for approval and
removal of animals in a strata scheme
Whatever by-law is adopted for pets, the Strata Schemes
Law gives owners and the owners corporation legal backing to
approve and remove animals.
If the owners corporation refuses approval to keep an
animal, then the owner or occupier may obtain an order
from the Tribunal (NCAT) to keep the animal under s 157 of
the Strata Schemes Management Act 2015 if:
- “the by-laws permit the keeping of an animal with
the approval of the owners corporation and provide that
the owners corporation cannot unreasonably withhold
consent to the keeping of an animal; and
- the owners corporation has unreasonably withheld its
approval to the keeping of the animal on the lot or
common property.”
If the owner or occupier is keeping an animal in
breach of the by-law, the owners corporation may obtain
an order from the Tribunal (NCAT) for removal of, or taking
of appropriate action against the animal under s 158 of the
Strata Schemes Management Act 2015. The Tribunal will
make an order:
“if the Tribunal considers that the animal causes a
nuisance or hazard to the owner or occupier of another lot
or unreasonably interferes with the use or enjoyment of
another lot or of the common property.” |
